After four years, Arlington man acquitted of son's death shares story


BENNINGTON >> Two years after his infant son's death, Russ Van Vleck, now 32, walked out of a windowless courtroom, acquitted of manslaughter, and said, "I can finally move on with my life."

That was four years ago on a sunny day in November, when Vermont Superior Court was being held in gloomy, temporary modular buildings pending the construction of a new State Office Complex. Van Vleck had spent the last three weeks there on trial, the state having accused him of causing the death of his 5-week-old son, Colin, in October 2009.

The state said Colin died of internal brain injuries caused within hours of his death, and with his father being the only one in the room with him at the time, he was the one responsible. Van Vleck was defended by Bennington attorney William D. Wright, and attorney Joyce Brenner, who called their own expert witnesses to testify that Colin suffered brain-related birth defects from an especially hard labor that caused him medical problems from day one and culminated in the medical event that killed him.

It took six years to get a jury verdict, and those years brought to the Van Vleck family a mix of disillusionment, volunteerism, near-divorce, stronger family bonds, nightmares, threats, community acceptance, and small steps toward closure.

Breaking the silence

Van Vleck, his wife, parents, and Wright met with the Banner Feb. 16 in Bennington to talk about the case and its aftermath.

Van Vleck was charged with manslaughter in March 2010, making moot any doubts his son's death had raised about him being deployed to Afghanistan with the Vermont National Guard.

Wright called Van Vleck while he was driving to his home in Arlington. He remembers he got the call near the Equinox Hotel in Manchester.

"My heart just fell into my stomach," Van Vleck said.

After his arraignment where he pleaded not guilty and was released without bail, Van Vleck's legal problems began to multiply, beginning when the police showed up at the hospital less than a day after his second child, Cassidy, was born. According to the Van Vlecks, police and a social worker had come to place Cassidy in state custody.

Colin was born at Southwestern Vermont Medical Center, but Van Vleck and his wife, Lindsey, chose to have their subsequent children at Rutland Regional Medical Center.

"The state tried to say we were trying to skip town and have our baby out of (town), so they couldn't touch the baby," said Van Vleck.

"They thought we were hiding from them, basically," said Lindsey Van Vleck.

Russ Van Vleck's father managed to calm him down while Wright was contacted and managed to contest the order of detention, ultimately having it so Russ could not be alone with his daughter without two adults supervising, and could not sleep on the same floor of any building she was in, including the hospital and their home.

Because of their experience with Colin, Lindsey Van Vleck had her other two kids via cesarean section, which meant she was in the hospital for three nights following each birth. Two of those nights, because of the court order, her husband spent sleeping outside the hospital in their truck.

"That's not the greatest thing as a newborn father to have to sleep outside," said Russ Van Vleck. "I could not assist my wife in taking care of my child without breaking the law."

The court constraints led to them moving in with his parents in Sunderland. After his acquittal in criminal court, Van Vleck was planning to go through a second legal battle in Family Court, however the Department for Children and Families decided to drop the matter.

But that doesn't mean Van Vleck is done with courts. He was placed on a child abuse registry maintained by DCF, a list not available to the public that can only be seen by schools and certain employers.

Wright said that getting on the list is substantially easier than getting off of it. One must wait seven years before they can apply for removal, but he was able to negotiate a slightly shorter time for Van Vleck, who has a hearing schedule for March on whether or not he will be removed from the list.

"At first it was pretty painful, because having a daughter my biggest concern was what can I do in school? When she goes to school am I not going to be able to do field trips, am I not going to be able to go to a game, is the school going to bring it up?" said Van Vleck.

Cassidy is getting ready to start school, and the Van Vlecks have another young child, who like her sister will one day have to learn what became of her brother and what happened to their father afterward.

"(Cassidy) knows she had a brother," said Lindsey Van Vleck. "There's pictures on our walls of a baby that's not here."

"At some point we'll tell her everything," said Russ Van Vleck. "She retains that she had a brother but doesn't know why. And that's always been on my mind, how to explain to her how everything happened, because now, again, it's like reliving the event. Hopefully by then people in town won't hold that against our family."

Negative perception

The Van Vleck's construction company did not fare well after news of the charge broke, and some reactions from the small community made Van Vleck fear for his safety.

"At first it was very scary, because people were always looking at you funny, especially me," Van Vleck said. "If I was by myself I was always worried. I always had something to defend myself on me at all times, because I just felt like someone was going to do something to me."

That nearly happened one night at a restaurant in Manchester. Van Vleck had been convinced to go out with a friend and some others at the restaurant indicated they wanted a physical altercation in the parking lot.

"They were just sitting across from us and just saying things, and I was ignoring them, but then it just escalated," said Van Vleck. "I just sat there, and was like, leave me alone, I've never done anything to you, you don't know me, please leave me alone."

He said when people read about a person being charged with a crime, they believe the person is guilty simply because there was an arrest. As information trickled out about the case, the community's perception of him seemed to change for the better.

Legal fees for the family exceeded $200,000, Wright said, and could have been more had Brenner, who heard about the case and contacted him, not offered her services pro bono. A medical examiner from Miami-Dade County, Fla., also offered his testimony free of charge.

Van Vleck said everyone in his family chipped in for his legal defense, and cousins who had not spoken in years came together when they rallied around him, but the case nearly ended his marriage.

The criminal proceedings fouled the grieving process for Van Vleck.

"Denial, for myself, was months and months. Until after the trial, I never had time to take it all in. I didn't have time to grieve, because by the time I got to my grieving process the state arrested me and it kind of halted everything. So, I was holding onto that. Lindsey was doing her thing, and I didn't want to be involved with anybody," he said.

He had nightmares for years, reliving that night in October when he gave CPR to his son while on the phone with a 911 dispatcher.

"I can relive that evening with him to every second," he said. "I know exactly what I was doing, where I was. I know my 911 call. I remember leaving and going in the ambulance, but the only thing I didn't remember from the whole thing until the driver said, it was I had no shoes on. I don't remember that, because it wasn't part of my thinking."

For a time, Van Vleck struggled with feelings of guilt, wondering if he had made a mistake performing CPR. "That was the hardest part for me, did I not do something right? And then Bill had to keep reassuring me, it wasn't you."

Van Vleck's anger made him hard to be around, and both he and his wife went to see divorce lawyers. They never went through with it and will be married six years this July.

"We just realized it wasn't what we wanted," said Lindsey Van Vleck. "We wanted to have a family and be a family. Basically, why are we letting them ruin our lives?"

Their second child was just three months old when they were mulling divorce.

"I think Cassidy is the reason why we stayed together, because it was something that both of us still had as a family," Russ Van Vleck said.

Eventually he was able to come to terms with Colin's death.

"The milestone I had was when I dug the footings for his tombstone and his bench," he said. "That one day just sticks in my head, digging the hole. I could sit there and talk with him and do something for him at the same time."

Had someone else done the work as originally planned, the cost would have been $1,200.

"I was sick of people taking things from me, so I just, in my mind I was like, I'm going to do it myself, for my son. I'll give him what he deserves," he said.

Questioning the investigation

Van Vleck, and the rest of his family, feel the Bennington County State's Attorney's office mishandled the case, and that the investigation done by Vermont Chief Medical Examiner Dr. Steven Shapiro, was rife with errors and failed to account for Colin's existing medical problems.

Wright explained that it was those medical problems, which manifested externally with bloodshot eyes and a misshapen head, caused Colin's brain to swell, more than his skull could handle, and the pressure on his brain killed him.

One thing that angered the family was a post Shapiro made to a medical blog regarding the case, in which he asked if others had ever been contacted by jurors after the fact, saying they felt the defendant was responsible for the death but not criminally so.

"I just had a first time experience and was wondering if anyone else has had this happen. We recently were involved in a child abuse case in which the defendant was acquitted. Not an unexpected verdict, as we pretty much figured that the jury would find reasonable doubt because the infant did have a congenital defect. We did discuss this with the prosecution prior to charges and although we all knew it would be extremely difficult to convict, the prosecutors decided, and I agree, that they couldn't just let this go simply because it was a long shot to convict. I don't want to get into the details, but needless to say it was a long, dirty trial with the not unexpected result," reads the post, which was forwarded through emails between attorneys involved in the case.

Shapiro did not return a call seeking comment.

Bennington County State's Attorney Erica Marthage said in an interview that her office does not second-guess the decisions of juries, and that it files charges that fit evidence brought to it by investigators.

"It's my job to bring forth cases where I believe there is evidence that supports the fact that the defendant did this, but there are multiple other factors that go into all of these cases, and those are the ones that end up at jury trial," she said.

A good prosecutor, she said, will have about a fifty-fifty win-loss rate for trials. Better than that means only the easy cases are going forward, worse would indicate frivolous charges.

"In that case in particular, we had an infant that had died, and the evidence that I had from the medical experts was that the evidence supported a charge going forward, and it did," she said.

The Van Vlecks have sought out attorneys in an attempt to sue the state, but according to Wright prosecutors and medical examiners have certain legal immunities preventing that.

This fact left Van Vleck bitter about his decision to join the military and defend a country where the law, he feels, betrayed him.

"I literally was alone with my family trying to figure out how to go after these people and no one would take it, even though it's so blatant and obvious what they did was just because they needed a headline for a paper," he said.

Wright said that Shapiro is a firm believer in "shaken baby syndrome," despite emerging science calling into question previously held assumptions. He said what bothered the Van Vleck family was that Shapiro's office did not want to own some of the mistakes it had made.

Highly publicized infant deaths in recent years have also politicized Van Vleck's remaining legal issues, Wright said, but he feels confident his client will be removed from the child abuse registry given his track record with his two children.

Justice served with acquittal

During the interview with the Banner, Wright said that despite what happened during the case, justice was ultimately served with Van Vleck's acquittal.

"You were very angry," he said to Van Vleck. "You still are, but not like you were."

"I probably wouldn't have been able to do this interview a year after, because just to talk about it was just too overwhelming," Van Vleck said. "Even today, Lindsey was just like, 'I don't even know if I want to go and talk.' So, it's still a little touchy."

Some of that bitterness has ebbed, with Van Vleck becoming a volunteer for Habitat for Humanity, after the organization helped him get a home.

It was being able to give back, knowing that others had helped him, that let Van Vleck shake off some of the old feelings.

"For me, I'll probably be doing it for the rest of my life," he said. "The reward to give back to someone ... I wouldn't be here right now if it wasn't for Bill and Joyce."

Contact Keith Whitcomb Jr. at 802-447-7567, Ext. 115.


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